Nestlé USA faces a fresh class action lawsuit in the US for allegedly failing to disclose its chocolate brands may use cocoa from unlawful child or slave labor.

Nestlé said the lawsuit is a “carbon copy” of an earlier dismissed court filing in California. The company said it was committed to eradicating forced child labor in its supply chain and said class actions are not the way to solve such a complex issue.

Earlier lawsuits against Nestlé USA, Mars and Hershey dismissed

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Consumer rights law firm Hagen Berman, previously represented private consumers Elaine McCoy (against Nestlé USA), Laura Dana (against Hershey) and Robert Hodson (versus Mars) in lawsuits intiated in September 2015. The suits alleged companies had failed to disclose cocoa in some chocolate brands may come from slave labor. A district court in California threw out​​ the suits in 2016. The judge said it was not “sound policy” to compel manufacturers to disclose certain facts on packaging. “There are countless issues that may be legitimately important to many customers, and the courts are not suited to determine which should occupy the limited surface area of a chocolate wrapper,”​ he said.

Consumer Danell Tomasella brought the suit in a US district court in Massachusetts yesterday.

It alleges Nestlé USA has deceived consumers by failing to adequately inform them brands such as Crunch and Butterfinger may contain cocoa cultivated by child or slave labor.

Law firm Hagen Berman, which failed in similar class lawsuits in California against Mars, Nestlé USA and Hershey in 2016, is representing Tomasella. See factbox for further details.

Lawsuit claims disclosure failure​

The lawsuit says: “That the Worst Forms of Child Labor are in Nestlé’s supply chain for its chocolate products is material to consumers not wishing to support such labor with their purchasing power. ​

“In the course of marketing and selling its chocolate products, however, Nestlé materially omits and does not disclose that its chocolate products have child and slave labor in the supply chain.” ​

It further alleges Nestlé has not required its suppliers to remedy the practice despite being aware child and slave labor exists in its supply chain.

The suit argues that had consumers known products may contain cocoa procured from child or slave labor, they would not have purchased the products or paid as much.

It calls for the court to say Nestlé violated the Massachusetts Consumer Protection Law and pushes for damages for the claimant and others that purchased Nestlé chocolate under allegedly false pretenses.

Separate Nestlé, Cargill and ADM lawsuit

In March 2017, a Californian district court dismissed​​ a 12-year old lawsuit against Nestlé, Cargill and ADM, which alleged the firms aided and abetted child slavery in West Africa. The judge ruled the suit “seeks an impermissible extraterritorial application of the Alien Tort Statute” ​​and he dismissed the case. The Alien Tort Statute​​​ (ATS) means companies can be sued in the US for actions outside the country, but only when some conduct “touches and concerns”​​ the US with sufficient force. Alleged former child slaves, who were represented by human rights organization International Rights Advocates, brought the suit in 2005. Non-profit The Washington Legal Foundation (WLF) yesterday filed a brief​​ urging the US Court of Appeals for the Ninth Circuit to uphold the dismissal. "Congress did not adopt the [ATS] statute for the purpose of making US judges the arbiters of working conditions throughout the world,"​ it said.

Nestlé: 'Carbon copy' of dimissed lawsuit​

Josh Morton, corporate communications at Nestlé US, told us: "This lawsuit is a 'carbon copy' of one previously filed by the same law firm and dismissed by a California court.​

"We believe this one will be dismissed, too. Consumer class actions are not the way to solve such a serious and complex issue as forced child labor.​

"Regrettably, in bringing such lawsuits, class action lawyers are targeting the very organizations trying to fight forced labor. The use of forced child labor is unacceptable and we are committed to eradicating it from our supply chain. We continue to take dedicated action, working together with other stakeholders, to combat this global social problem."​

What is Nestlé doing to combat child labor?​

In 2013, Nestlé allowed the Fair Labor Association (FLA) to assess a portion of its cocoa supply chain that falls under the Nestlé Cocoa Plan – which represented 35% of its cocoa volumes as of the end of 2016.

FLA audits of select farms found 21 child workers (representing 3% of the total workforce) in 2014, six child workers (representing 1% of the total workforce) in 2015 and no hired young or child worker in 2016 assessments.

Since 2012, the KitKat owner has adopted a Child Labor Monitoring Remediation System (CLMRS) for some of its cocoa supply chain in Côte D’Ivoire and Ghana.

It has discovered around 7,000 children​​ engaged in the worst forms of child labor since the CLMRS began, most of whom are now out of cocoa work.

Nestlé told us in October​​ last year, the CLMRS covered 75 co-operatives and 48,000 farmers, representing roughly 130,000 metric tons (MT) of cocoa supply. Almost 70% of Nestlé’s cocoa volumes have no CLMRS.

ConfectiioneryNews has asked Hagen Berman how its latest lawsuit differs to the dimissed claim in California and is awaiting its response.